1. ' ALLAH DINO MEMON, J.--- Appellant Lal Khokhar son of Siddique was charged under section 13-B of Pakistan Arms Ordinance, 1965 and tried before the learned Presiding Officer, Special Court No,1 (Suppression of Terrorist Activities) Karachi, who has convicted and sentenced him to suffer R.I. For three years and to pay fine of Rs,1,000, in default of fine he was to suffer further R.I. For three months vide judgment dated 30th April, 1989.
2. ' The brief facts giving rise to the present appeal are that while Inspector Haji Muhammad Yasin of C.I.A. Karachi, alongwith his subordinate staff was busy with investigation of Crime No,208 of 1988 of TPX Police Station, under section 17(3) of Offences Against Property (Enforcement of Hudood)
3. Ordinance, 1979, and when they reached in front of Hotel of Yamcen at 8-00 a.m. He received spy information that a person by name Lal Khokhar was coming from City side in a Silver colour Toyota Car No,112-578 and that he was in possession of klashnikov with loaded magazine. He .Was further informed that perhaps the said car was also stolen property. He picked up two persons namely Aziz Muhammad and Meer Sultan for acting as Mashirs and started watching on the road. In the meanwhile the said car was seen coming from the site side which was stopped with great difficulty by the members of the police party. On inquiry, the accused gave his name as Lal Khokhar son of Siddique Khokhar. The accused was arrested and they took search of the car and found a Magazine bag containing klashnikov loaded with 70 live cartridges and 50 extra live cartridges from the rear seat. The klashnikov and cartridges were secured and such Mashirnama was prepared. They asked the accused to produce licence but he could not produce the same. The Inspector then sent His statement to the S.H.O. Police Station Korangi, Karachi for registration of the case. Through Police Constable Muhammad Email and the F.I.R. Was accordingly recorded on the basis of the statement. The statement of Inspector Haji Muhammad Yasin has been produced as Exh.3-B and the copy of F.I.R. Incorporated in 154, .Cr.P.C. Book has been produced as Exh.3-C.
4. ' After necessary investigation, the accused was chained before the Court.
5. ' A. Formal charge was framed against the appellant/accused to which he pleaded not guilty.
6. ' At the trial, prosecution, examined Mashir Aziz Umer P.W.1, he has produced identity car of accused as Exh.2/A, the licence of the accused as Exh.2/B, and Mashirnama of arrest and recovery of the above articles as Exh2-C. Inspector Haji Muhammad Yasin P.W.2, has produced copy of certificate of marriage as Exh.3/A, and his statement sent to the Duty Officer Police Station Korangi for registering the case as Exh.3/B, F.I.R. As Exh.3-C, report of ballistic expert as Exh.3/D, duplicate of registration certificate as Exh.3/E, Insurance certificate as Exh.3/F/1, another certificate of Insurance as Exh.3/F-2, F.I.R. Lodged by Ashfaq Muhammad regarding theft of his car bearing No,032-789, Toyota Corolla as Exh.3/G, copy of daily diary, dated 12-12-1988 as Exh.3/H-1, copy of daily diary dated 2-1-1989 as Exh.3/1-12, statement of Inspector Haji Muhammad Yasin returning process as Exh.3/I, Mouladad Khan Ballistic Expert P.W.3, he has produced the letter of Inspector as Exh.4/A, Ashfaq Muhammad P.W.4, owner of the car bearing No,032-789, Mashir Meer Sultan P.W.S. ' After close of the prosecution case, the statement of the appellant was recorded under section 342, Cr.P.C. In which he has denied the allegations. He has further stated that he was innocent and the police had secured Suzuki car from his possession. The Suzuki car belongs to his father who is a building contractor. The papers regarding ownership of the Suzuki car are available with his Advocate. He works with his father. The accused examined his father Siddique in his defence as D.W.1. He has produced an order showing that he is contractor, and pays Income-tax as Exh.8/A, registration certificate as Exh.8/B, Alwan Gill Scrap Dealer D.W.2, Nadir D.W.3, Agnis brother of accused D.W.4.
7. ' After taking into consideration, the evidence produced by the prosecution and accused the learned Presiding Officer, Special Court has been pleased to convict the appellant as described above and the present appeal has been filed against the above judgment of conviction.
8. ' We have heard Mr. Ghulam Mohiuddin, learned counsel appearing for the appellant, Mr. Ali Nawaz Dhahraj, learned counsel appearing for the State and have gone through the R&P of the case.
9. ' It was contended by Mr. Ghulam Muhiuddin learned counsel appearing for the appellant that there was non-compliance of provisions of section 340(2), Cr.P.C. Which has occasioned miscarriage of justice and, therefore, the judgment was liable to be set aside on this ground alone and the matter may be remanded back to the learned Presiding Officer for further inquiry.
10. ' Mr. Ali Nawaz Dhahraj, learned counsel appearing for the State has contended that the provisions of section 340(2), Cr.P.C. Were mandatory and since no question was asked from the accused whether he wanted to examine himself on oath, the learned Presiding Officer has committed an illegality and, therefore, he has no objection if the matter was remanded back to the learned Presiding Officer for further inquiry.
11. We have considered the contentions of the learned counsel. No doubt, it is clear from the statement of the accused/appellant recorded under section 342, Cr.P.C. That no question was put to him whether he wants to examine himself on oath. It will be appropriate to refer to section 340(2), Cr.P.C. Which reads as follows:-- "Section 340(1) ......................................
12. ' Section 340(2).-- Any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges or allegations made against him or tried together with him at the same trial: ' Provided that he shall not be asked and, if asked, shall not be required to answer, any question, tending to show that he has committed or been convicted of any offence other than the offence with which he is charged or for which he is being tried, or is of bad character, unless:--
(i) the proof that he has committed or been convicted of such offence is admissible in evidence to show that he is guilty of the offence with which he is charged or for which he is being tried; or
(ii) he has personally or by his pleader asked questions of any witness for the prosecution with a view to establishing his own good character, or has given evidence of his good character or;
(iii) he has given evidence against any other person charged with or tried for the same offence."
13. The bare reading of section 340(2), Cr.P.C. Will show that the above provision is for the advantage o1 an accused in the sense that if he elects to examine himself in disproof of the charges and allegations made against him at the trial, he can offer his evidence on oath, in disproof of charges, and, therefore, it was necessary for the trial Court to ask specific question from the accused whether he wants to examine himself on oath as his own witness as envisaged by section 340(2), Cr.P.C. The provision is, therefore, mandatory and failure to put question to the accused while recording statement under section 342, Cr.P.C. Was an illegality.
14. ' It will be appropriate to refer to the following decided cases in which the above point was considered:--
(1) Muhammad Yousuf v. The State PLD 1988 Kar.
15. 539.
(2) Jan Muhammad v. The State 1987 P Cr. L J 2302.
(3) Unreported case of Sher Muhammad alias Shera v. The State (Criminal Appeal No, 21 of 1989), decided on 11-6-1989 by a Division Bench of this Court of which one of us namely, Allah Dino Memon, J. Was a member and
(4) Allahyar v. The State 1989 SCMR 1910 (Shariat Appellate Bench).
16. ' In the case of Muhammad Yousuf, a Dix kion Bench of this Court consisting of Ajmal Mian, C.J. And Abdul Rasool Agha. I. While considering the provision of section 340(2), Cr.P.C. In juxtaposition with Article 13(b) of the Constitution, held, that if an accused person makes statement on oath under section 340(2), Cr.P.C. He will be subject to cross-examination by the prosecutor and in the cross- examination, he is bound to ask him questions, which can incriminate him in the commission of the offence which will amount to compelling him to be a witness against himself which is prohibited under Article 13(b) of the Constitution. What we understand from the above observation in Muhammad Yousuf's case, is, that an accused person under section 340(2), Cr.P.C. Cannot be compelled to be a witness against himself in the case, as such a course will be violative of Article 13(b) of the Constitution. A careful reading of section 340(2), Cr.P.C. Will show that the law does not require the accused person to be a witness against himself in the case, though he may be cross- examined by the prosecutor when deposing on oath in disproof of the charges and allegations made ginst him at the trial. The above provision, which is a departure from the well-known principle of criminal jurisprudence that an accused person cannot be examined on oath in a criminal trial in our opinion, is in the nature of an advantage to an accused in the sense that if he so elects, he can offer his evidence on oath in disproof of charges and allegation in the case. This advantage to the accused cannot be denied on any ground if he elects to exam* himself. The grievance of the learned counsel for the appellant before us is, that the trial Court did not make available this opportunity to appellant as he was never asked whether or not he would like to examine himself under section 340(2), Cr.P.C.
17. ' In the case of Jan Muhammad v. The State, which was initially heard by a learned Single Judge of this Court and after hearing the case, the following question was referred to a Division Bench for an authoritative answer:-- "Whether section 340(2), Cr.P.C. Does or does not cast duty upon a Criminal Court to proceed to record evidence on oath of the accused, as envisaged, thereunder."
18. ' The Division Bench after hearing the case returned the answer to the above question as follows:-- ".... The evidence on oath by the accused required to be given under subsection (2) of the section 340 contained in Chapter XXV of the Code of Criminal Procedure in disproof of the charges or allegations made against him or the co-accused charged or tried together with him at the same trial is, therefore, integral part of the trial of the case. Of course, the accused has option of leading evidence in defence under Chapter XX or, as the case may be, under Chapter XXII-A of the Code of Criminal Procedure but he has no option in giving evidence himself on oath as enjoined under subsection (2) of section 340 and, therefore, duty is cast upon the trial Court to call upon hirii to give evidence on oath and unless that is done, the trial of the case is not complete. We are, therefore, of the opinion that the obligation of giving evidence on oath cast on the accused under subsection (2) of section 340 of the Code of Criminal Procedure casts obligation on the trial Court to call upon the accused to give evidence on oath and record his evidence unless he declined to do so. Accordingly, answer to the question referred for the opinion of the Division Bench is in affirmative."
19. ' In the case of Sher Muhammad, while allowing the appeal the Court had observed as follows:-- "We are in respectful agreement with the above observations and are further of the view that Muhammad Yousuf's case is distinguishable as no one has argued before us that section 340(2) is violative of Article 13(b) of the Constitution. The above interpretation of section 340(2), Cr.P.C. In Jan Muhammad's case, in our view does not come in conflict in any manner with Article 13(b) of the Constitution. It is conceded by the learned counsel for the State that in the case before us the accused was not asked any specific question whether he would like to be examined on oath as his own witness in accordance with provision of section 340(2), Cr.P.C. We are, therefore, of the view that the aforesaid omission on the part of the trial Court resulted in causing prejudice to the accused. We accordingly allow this appeal and remand this case with a direction that the accused may be asked specific question with regard to his willingness to examine himself as his own witness on "oath under section 340(2), Cr.P.C. And if he so elects his evidence may he recorded accordingly. In case, the accused decline to give evidence on oath the matter. Will be reheard on the basis of the evidence already recorded in the case."
20. ' In the case of Allahyar v. The State 1989 SCMR 1910 it was held by Shariat Appellate Bench of the Supreme Court that:-- "It was mandatory for trial Court to ask from the accused as to whether he wants to make statement on oath as envisaged by section 340(2), Cr.P.C. And failure on the part of the trial Court to put such question, the trial Court had committed an illegality. However, since the accused/appellant was not able to show as to what prejudice was caused to him because of the above illegality and there was sufficient evidence against him the petition for leave was dismissed."
21. In view of the above factual as well as legal position we allow this appeal and remand this case with a direction that the accused be asked specific question with regard to his willingness to examine himself as his own witness on oath under section 340(2), Cr.P.C. And if he so elects, his evidence may be recorded accordingly. In case, the accused declines to give evidence on oath, the matter will be reheard on the basis of the evidence already recorded in the case.
22. ' We had decided the above appeal on 16-10-1989, and these are the reasons for the same.